Note on the Provisional Constitution of the Federal Republic of Somalia

—Antonios Kouroutakis, University of Oxford, Faculty of Law

The Provisional Constitution of the Federal Republic of Somalia (the Constitution) is the supreme law of Federal Republic of Somalia (Somalia). The drafting process occurred under the auspices of United Nations, and on 1 August 2012, the National Constitutional Assembly approved the Constitution by an overwhelming majority. The Constitution was adopted with the aim of terminating an eight-year period of tensions, warfare, political turmoil, and often chaos, by establishing efficient political institutions and introducing governance that is more responsive and accountable to its people.

The Constitution is comprised of 15 Chapters and 143 Articles. Chapters 5 and 12 flesh out the principle of federalism, Chapters 6 to 9 embody the separation of powers and Chapter 10 introduces the Independent Commissions. Chapter 2 encompasses the Bill of Rights, while the procedure for amending the constitution is prescribed in Chapter 15 under the Title 1.

In this Note, I review and evaluate the Somali Constitution

The Fundamentals of the Somali Constitution: Problems and Prospects

The system of government in Somalia rests on four main organs: the President, the Bicameral Parliament, the Government, and the Constitutional Court. The system of governance is determined by the division of powers between these organs, exercised within the framework of the federal, republican and parliamentary political system.

Somalia is a Federal State (Article 3(3) and 48). Federalism corresponds to the diversity of the Somali society. The Constitution creates a two-level government and distinguishes two types of competences. On the one hand, Article 54 contains an exhaustive list of competences to be exclusively exercised by the Federal Government: Foreign Affairs, National Defense, Citizenship and Immigration, and finally Monetary Policy. On the other hand, Article 50, which is open textured, recognizes shared competences between Federal Government and Member States on the principle of subsidiarity (50(b) and 50(f)). As a result, the boundaries between federal and states competences are not clear. This could lead to conflicts regarding the ambit of federal power. History teaches that in any new federal state, the delineation of federal and states’ powers is a politically sensitive issue, which could threaten the stability and even the unity of the state. This is further exacerbated by the political, societal and historical characteristics of Somalia (for example, the de facto cession of Somaliland). In that context, clarifying and delineating federal and state powers should be a priority.

The term “provisional” constitution is used in contrast to state constitutions, and it implies a hierarchy between federal and states constitutions. This is explicitly mentioned in Article 51(4).

The President is the Head of the State (Article 87(1a)). Presidential powers are enumerated in Article 90. The President exercises a variety of competences.  These include legislative oversight, as presidential assent on bills makes them into laws (section f and Article 85); administration, as the President is head of the armed forces (section b); regulatory competences, as the President appoints the Prime Minister (section d) or declares a state of emergency (section a); and judicial authority, as the President pardons offenders and commute sentences on the recommendation of the Judicial Service Commission (section p).

The President is elected by the Houses of the Federal Parliament (Article 89). On a single note, the required supermajority of 2/3 during the first and the second voting rounds aims to enhance the legitimacy of the Presidency. The Constitution makes detailed provisions for the election procedure of the President; however, it does not cover every eventuality. Importantly, there is no provision regarding the event of a tie, for example between three candidates in the final vote of the second round. In addition, in the event of the replacement of the President by the Speaker of the House of the People (Article 95), the question is whether the Acting President who is a Member of the Federal Parliament would have the right to vote in the presidential election.

The term of office of the President is four years (Article 91) and there is no provision on term limits. In addition, ambiguity exists in Article 90, which gives the President wide discretion to appoint the Prime Minister. It is unclear whether the President is under a legal obligation to appoint as Prime Minister the leader of the political party enjoying the overall majority of seats in parliament. This could be less problematic in countries with strong and long parliamentary traditions, where constitutional customs and conventions have been developed. As Somali democracy is in statu nascendi, such an ambiguity could trigger political crises and instability.

The Federal Government latu sensu is comprised of the Council of Ministers (Article 97(1)) while the head of the Federal Government is the Prime Minister (Article 100a). According to Article 99, the Council of Ministers has wide powers and general competence. Nonetheless, the competences of the Prime Minister reflect his special status in the context of the Federal Government, namely his power to appoint the members of the Council of the Ministers Article 97(3)) or his power to dissolve it with his resignation (97(4)).

The Constitution concentrates lawmaking power in the Houses of the Federal Parliament, giving the Prime Minister and their Council of Ministers effective control over the legislative agenda. For instance, the Council of Ministers may initiate draft legislation (Article 80(1)) and it has exclusive competence on the annual budget. This is mentioned 3 times in the Constitution, in Articles 69(1)(b), 79(1)(b) and 79(1)(c), and 80(1)(b). Although it does not create any interpretative problems, it does not advance the constitutional drafting economy either.

As a counterweight, the Prime Minister and the Council of Ministers require a vote of confidence by the House of People with a simple majority of the total members (Article 69(1)(d)). Thus, the executive remains dependent on, and accountable to the legislature.

The Federal Parliament is bicameral, with the Upper House and the House of the People (Article 55). Their competences are enlisted in Articles 71 and 69, respectively.  The Upper House represents the interest of the Member States and safeguards the federal system (Article 61(3)), while the House of the People represents their constituents (Article 61(2)).

The legislative process is described in Articles 82 to 85 and institutional dialogue in case of disagreement between upper and lower house is based on a supermajoritarian voting system, which enhances consensus in the law enactment process. The absence of legislative veto by the Upper House prevents deadlocks in the law enactment process (Article 81(2)), which is concluded in the House of the People (Article 81(4)).

Despite its significant competence, the Upper House does not have an equal constitutional status with the House of People (Articles 47, 69(1)(d), 109B and 113). The relationship between the House of the People and Government is defined by parliamentary scrutiny of the government and the accountability of the government to Parliament. However, if the House of People fails to approve the Council of Ministers of the program of the Government, the President has to dissolve it (Article 67 in combination with Article 69(o)).

Two essential characteristics for a stable government—the nature of a country’s party system, and the majority-building capacity of a country’s electoral system—are both subject to special legislation adopted by the House of People (Article 47) Nonetheless, Article 47 is under further revision (Schedule One (C6)).

The Constitution adopts the concentrated model of constitutional review, granting the Constitutional Court a monopoly over constitutional review. The formation of the Court is regulated in article 109B. The Judicial Service Commission nominates the Judges and the House of the People approves them. There is no supermajority rule limiting the power of the governing party in the lower house when making Constitutional Court appointments. This could raise questions regarding the strict separation of powers and judicial independence.

The Constitutional Court has the supreme power to review acts of the Federal Parliament in case they fail to conform to the Constitution (Article 4(2) and 86(1)). Its competences are described in article 109C.  Nonetheless, the text of the Constitution is silent concerning the power of the Court to review legislative procedure (interna corporis), while the hierarchical role of the Shari’ah might create problems of interpretation (Article 2(3)).

Chapter 10 incorporates in the constitutional system the Independent Committees and the Office of Ombudsman. The Constitution prescribes a series of Committees of different kinds and subject matters (Articles 111). The whole constitutional system (President, Council of Ministers and Houses of Parliament) is involved in the appointment of their members (Article 112).

As a matter of both structure and substance, there is no Preamble to set out the values of the civil society and epitomize the nexus between the text of the Constitution and the People of Somalia.

A Preliminary Assessment

To the credit of its drafters, the most modern ideas of constitutionalism are indeed reflected in the text of the Constitution. Constrained parliamentarianism, supermajority requirements during the legislature process (signaling the great need for consensus in Somali political life), as well as the recognition of independent bodies with supervisory authority to enhance accountability of the political institutions are some of the innovative features of the Constitution. At the same time, the ambiguous and imperfect formulation of key principles of Somali federalism may contain the seed of future tensions, conflicts and instability, which have plagued the country for years, if not decades.

Without overestimating the impact of sound institutions and creative constitutional engineering in the face of a complex and often divisive political, diplomatic, economic, ethnic, cultural, and social reality, the Constitution, despite its shortcomings, could be the organizational basis of a peaceful and prosperous Somalia.

 

Suggested Citation: Antonios Kouroutakis, Note on the Provisional Constitution of the Federal Republic of Somalia, Int’l. J. Const. L. Blog, Sept. 17, 2013, available at: http://www.iconnectblog.com/2013/09/note-on-the-provisional-constitution-of-somalia